THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT MUBENDE
CIVIL REVISION NO. 009 of 2019
(Arising Out of Miscellaneous Application No. 087 of 2018)
- THE REGISTRAR OF CO-OPERATIVE SOCIETY
- THE DISTRICT COMMERCIAL OFFICER ===APPLLICANTS
RULING BY HON. JUSTICE DR. JOSEPH MURANGIRA.
The applicants are represented by the Attorney Generals Chambers, Kampala.
The respondent is represented by Mukasa Lugalambi Advocates & Solicitors, Kampala.
This application is brought by way of Notice of Motion, under Sections 83 & 98 of Civil Procedure Act Cap 71 and Order 52 rules 1 & 3 of Civil Procedure Rules S.1 No. 71-1.
This application is seeking the following orders, that:-
- The order made by the trial Magistrate in M.A No. 87 of 2018 be revised.
- A declaration that the trial Magistrate in exercise of his jurisdiction acted with material irregularity thereby occasion a miscarriage and abuse of justice.
- Costs of the application be provided for.
This application is based on the following grounds, that:-
- The learned trial Magistrate acted with material irregularity when he decreed and ordered that the election of new office bearers of Kiboga Twegate Co-operative Society is hereby stopped until determination of the main suit or until rectification of the co-operative membership register with costs, whereas the bye laws governing the co-operative society clearly provide that the Chairperson and Committee shall only sit for the time of 2 years, thereby occasioning a miscarriage of justice.
- In the interest of justice, this court be pleased to revise the orders of lower court and order a cancellation/stay of the same pending the determination of the main suit in the Chief Magistrate’s Court.
- It is fair and just that this application be allowed in favour of the applicants.
This application is supported by the affidavit sworn by Joseph William Kitandwe, the Registrar of Co-operative Societies in Ministry of Trade, Industry & Co-operative Societies sworn on 2nd April, 2019.
Further, this application is supported by an affidavit in rejoinder sworn by Joseph William Kitandwe, the registrar of Co-operative Societies in Ministry of Trade, Industry and Co-operatives sworn on 17th day of April, 2019.
The respondent filed an affidavit in reply and opposition to the grant of this application. This affidavit in reply is rebutted by the said applicants affidavit in rejoinder.
Further, a one Katusiime Jackson, the District Commercial Officer of Kiboga District swore an affidavit in reply to the application sworn on 17/04/2019. This affidavit contains affidavit evidence challenging the application he filed in court thus it has no relevance to this application.
Resolution of this application by court.
The advocates for the 1st applicant and the respondent filed in court their respective written submissions in support of their client’s case. Counsel for the applicants submitted that the trial Magistrate in exercise of his/her jurisdiction acted with material irregularity thereby occasioning miscarriage of justice and an abuse of the court process.
In reply, counsel for the respondent does not agree. He argued that the trial Magistrate acted within the law and that the orders complained of by the 1st applicant are not subject to revision by this court.
I perused the submissions by counsel and analyzed their respective arguments in support of their clients. I also evaluated and analyzed the entire affidavits evidence adduced by the parties on the court record.
The orders complained of are all arising from Miscellaneous application no. 87 of 2018 (which is arising from civil suit no. 064 of 2018, at Chief Magistrate’s court of Kiboga at Kiboga, Sendagire Hudhar –Vs- The District Commercial Officer and The Registrar of Co-operative society. They are:-
Annexture B to the affidavit in reply:-
“ The Republic of Uganda
In the Chief Magistrate’s Court of Kiboga at Kiboga
Civil Suit no. 012 of 2018 Sendagire Hudhar –Vs- The District Commercial Officer, Kiboga and The Registrar of the Co-operative Societies.
The matter coming up for final disposal before His Worship Nsobya Ronald Kamya, learned Magistrate Grade 1 on the 30th day of August, 2018 in the presence of the plaintiff and in the absence of the defendants.
It is hereby ordered that
- That the respondent, his agents/ servants restraining them from further resolution of a vote of no confidence to the plaintiff.
- Costs of this application be in the cause.
Given under my hand and the seal of this Honourable court this 30th day of August, 2018.
Nsobya Ronald Kamya
Magistrate Grade 1.”
Annexture “D” to the affidavit in support of this application:
“ The Republic of Uganda
In the chief magistrate’s court of Kiboga at Kiboga.
Miscellaneous application no. 087 of 2018 (arising from civil suit no. 064 of 2018)
Sendagire Hudhar –Vs- The District Commercial Officer Kiboga and The Registrar of Co-operative Society.
This matter coming up for final disposal on this 27th day of February, 2019 before His Worship Kibuuka Christian, Magistrate Grade One in the presence of Mukasa Lugalambi Counsel for the applicant and the applicant and in the presence of the 1st respondent.
It is hereby decreed and ordered as follows:-
- The elections of new office bears of Kiboga Twegatte Co-operative Society is hereby stopped until the determination of the main suit or until the register of membership of the society is finally rectified.
- Costs be in the cause.
Given under my hand and seal of this Honourable court this 27th day of February, 2019.
Magistrate Grade 1.”
The above are the orders the 1st applicant wants this court to revise.
Under section 83 of the Civil Procedure Act, Cap. 71, the High Court may call for the record of any case which has been determined by any subordinate court and may revise the case if that court appears to have:
- Exercised a jurisdiction not vested in by law.
- Failure to exercise a jurisdiction vested in that court.
- Acted in the exercise of its jurisdiction illegally or with material irregularity or injustice.
In the instant application, the 1st applicant’s complaint is about the third category, that is, that the trial Magistrates who granted the abovestated impugned orders cited in the exercise of their jurisdiction illegally or with material irregularity or injustice. In this respect the court must have jurisdiction but exercises it wrongly through some procedural or evidential defect. See A Hand book for Magistrates, Law Development centre 2004, 23.
In the case of Mubiru-Vs- Kayiwa (1975) HCB, it was held that:-
“ where there has been a procedural irregularity in proceedings leading to the judgment or order which is a judgment such order ought to be treated as a nullity or set aside”.
I have perused the court record. There are no proceedings pertaining to the interim order that was issued on 30th August, 2018 at 4:30 P.M. There is no evidence on the court record to show that the Registrar of Co-operative societies was ever served with Miscellaneous application no. 88 of 2018 between the parties. The law requires that such applications ought to be served on to the respondent, before hearing the same. Order 52 rule 4 of the Civil Procedure Rules (Supra) provides that:-
“ 4. Dismissal or adjournment for want of notice.
If upon the hearing of the motion or the application, the court is of the opinion that sufficient notice has not been given or that any person to whom notice has not been given ought to have had the notice, the court may either dismiss the motion or application or adjourn the hearing of it in order that the notice may be given upon such terms, if any, as the court may think fit to impose”.
This Procedure was not followed by the two Magistrates who granted the two impugned orders. The errors in that regard constitutes an illegality.
Further, the said interim order arises from civil suit no. 012 of 2018 and not from Miscellaneous application no. 88 of 2018 between the parties. There is no record of CS no. 012 of 2018 whereby the 1st applicant was sued. Thus, this impugned interim order to that extent would be a nullity. Again, the said interim order, the trial Magistrate, His Worship Nsobya Ronald Kamya order that:-
“(a) That the respondents, his agents or servants, restraining them from further resolution of vote of no confidence to the plaintiff”.
The aforequoted order is to say least meaningless. The vote of no confidence was passed against the plaintiff (respondent in this matter). What the said trial Magistrate did is that, he stopped future resolutions of passing a vote of no confidence by the Board members of the said Cooperative Society. In effect the said interim order confirmed the vote of no confidence that was passed by the said Board Members against the plaintiff, which I think was not the intention of the said trial Magistrate. To that extent the said interim order was illegally applied on the applicants. It caused untold injustice to the applicants and the said Cooperative Society. Even a look at Miscellaneous application no. 88 of 2018 arising from CS no. 64 of 2018 between the parties, among other orders being sought therein were: “..............., undertaking any step
or in any other way interfering with the office of Cooperative Society until final disposal of the main suit filed in this court”.
This order was never granted to the plaintiff in the impugned interim order. Thus, the plaintiff remains in office illegally. Wherefore, this said interim order certainly caused a miscarriage of justice.
Consequently, the 1st applicant is aggrieved with the order of His Worship Kibuuka Christian, Magistrate Grade One who granted a temporary order of injunction dated 27th February, 2019 against the 1st applicant.
The said order arises from Miscellaneous application no. 87 of 2018 between the parties. I perused the entire record of the lower court, and there is no proof of service of the said Miscellaneous application on to the 1st applicant, which is contrary to the law. Again, the record of the lower court of 27/2/2019 clearly shows that the said trial Magistrate Grade One never delivered a ruling in Miscellaneous application no. 87 of 2018 between the parties. Counsel for the applicant therein Mr. Mukasa Lugalambi submitted that: -
“We need an order”.
Further, the chamber summons were fixed for hearing on 19th September, 2018. No reasons are given on the court record as to why the said application was never heard on that said date. Therefore, the way the said Miscellaneous application was heard and determined on 27th February, 2019 is questionable. In the process of disposing of the said impugned Miscellaneous application, the said trial Magistrate Grade One, committed some procedural irregularities.
Further, I have perused the affidavits evidence by both the 1st applicant and the respondent, and both parties are in agreement that the respondent’s term of office as the Chairperson of the said co-operative society expired on 27th October, 2018.
Furthermore, according to the plaintiff’s (respondents) plaint filed in court on 30/8/2018, the plaintiff pleaded: -
“Paragraph 3 thereof: -
The plaintiffs brings the suit against the defendants for a declaration that the plaintiff is the lawful chairperson of Kiboga Twegate Co-operative society Ltd”.
The plaintiff in the plaint prays for judgment in the following orders: -
“(a) A declaration that the plaintiff is the lawful Chairperson of Kiboga Twegate Co-operative Society Ltd.
(b) An order for interim order.
- A permanent injunction restraining the defendants, their agents, servants or successors from in any way interfering with the plaintiff’s use and enjoyment of the office”.
As stated hereinabove in this ruling, the term of office of the respondent as Chairperson of Kiboga Twegate Co-operative Society Ltd, expired on 27th October, 2018. Hence, by 27th February, 2019 the impugned order was granted by His Worship Kibuuka Christian, the orders being sought for in the plaint and Miscellaneous application no. 87 of 2018 arising from CS no. 64 of 2018 between the parties had already been extinguished. That is, the orders that were being sought in the two aforestated pleadings had been over taken by events. Thus, the said trial Magistrate Grade One’s said order is to say the least not based on any pleadings by the plaintiff/respondent. To that extent the said impugned order is illegal. The said trial Magistrate did determine Miscellaneous application no. 87 of 2018 between the parties in a hasty manner, with procedural irregularities. The said order should not have been used by the plaintiff illegally to stop the election of the members of the said Co-operative Society Ltd. The said impugned order maintained the plaintiff illegally as the Chairperson of Kiboga Twegate Co-operative Society Ltd. The said order not based on true facts is redundant to say the least.
In closing and in total consideration of the affidavits evidence by the parties, the parties respective written submissions, my own evaluation and analysis of the entire case by both parties, the authorities cited, and in total agreement with the written submissions by counsel for the 1st applicant, I hereby answer the grounds of this Civil Revision in the affirmative.
Accordingly, therefore, this Civil Revision no. 9 of 2019 is allowed in the following orders; that:-
- This Civil Revision order as prayed in this application is granted.
- The orders made by the trial Magistrate in Miscellaneous application no.s 88 of 2018 and 87 of 2018 between the parties are revised and set aside for the reasons given hereinabove in this ruling.
- By the time the order of 27th February, 2019 was issued in favour of the plaintiff, the orders prayed for in his plaint and Miscellaneous application no. 87 of 2019, were already overtaken by events. In that regard, therefore, civil suit no. 64 of 2018 and Miscellaneous application no. 87 of 2018 between the parties stand dismissed.
- A declaration that the said two Magistrates who granted orders in the said respective miscellaneous applications nos. 88 of 2018 and 87 of 2018 between the parties, each, in the exercise of his jurisdiction acted illegally, and with material irregularity thereby occasioning a miscarriage of justice and injustice to the said Kiboga Twegate Co-operative Society Ltd.
- The respondent, Sendagire Hudhar, ceased to be the Chairperson of Kiboga Twegate Co-operative Society Limited on 27th October, 2018.
- The 1st applicant, The Registrar of Co-operative Societies shall conduct the election of the new members of the Board of Kiboga Twegate Co-operative society in a fair and democratic organized elections as per the law governing the co-operative societies and the By-laws governing Kiboga Twegate co-operative society Ltd, within 30 (thirty) days from the date of this ruling.
- The Respondent shall immediately handover office of the Chairperson to the 1st applicant hereinafter the delivery of this ruling.
- Costs of this application are granted to the 1st applicant.
Dated at Mubende this 10th day of May, 2019.
DR. JOSEPH MURANGIRA